RALEIGH, N.C.– Assistant U.S. Attorney Sebastian Kielmanovich recently issued subpoenas to Boards of Elections in all 44 counties in North Carolina’s Federal Eastern District on behalf of the federal Immigration and Customs Enforcement (ICE). While the exact timing of the issuance of the subpoenas is not clear, they became public knowledge on September 4 after an email was sent to all members of the local boards and redacted subpoena language was posted to Twitter.

“The timing and scope of these subpoenas from ICE raise very troubling questions about the necessity and wisdom of federal interference with the pending statewide elections,” said Kareem Crayton, Interim Executive Director of the Southern Coalition for Social Justice. “With so many well-established threats to our election process from abroad, it is odd to see federal resources directed to this particular concern. We are closely monitoring the handling of these subpoenas and will keep all legal options on the table to ensure that communities in our state enjoy an election process free from meddling and intimidation.”

This is part of a pattern in North Carolina. On August 17, 2018, the Department of Justice announced federal prosecutions of nineteen individuals in the Eastern District alleged to have voted while ineligible. Both the prosecutions and the new federal subpoenas come after a number of counties in the state decided not to prosecute ineligible voters who voted in the 2016 election. Most of those instances included voters who were ineligible due to the fact that they were still technically serving an active felony sentence by being on probation or parole, and these voters did not realize they were still ineligible to vote. Despite most counties declining to prosecute cases because of the lack of nefarious intent on the part of the voters, the State Board of Elections & Ethics enforcement is still referring cases of ineligible voters in the 2016 election to district attorneys for prosecution.

The Southern Coalition for Social Justice (SCSJ) represented five citizens in Alamance County who were charged with voting while ineligible due to an active felony sentence. All of those cases resulted in misdemeanor pleas deals that included no admission of guilt and the dismissal of the voting-related charges. SCSJ is concerned that the efforts in North Carolina to criminalize the ballot box and drum up evidence of “voter fraud” may be replicated on a much larger scale.

“This is clearly a fishing expedition that picks up where the Pence-Kobach Commission stopped. This administration appears to be outsourcing the Commission’s discredited agenda to U.S. Attorneys, thus wasting our local election administrators’ valuable time and resources, many of which had been focused on ensuring our upcoming elections are free from foreign interference,” said Allison Riggs, Senior Voting Rights Attorney for the Southern Coalition for Social Justice. “It’s ironic, and clearly a political exercise, that an administration that has benefited from foreign election interference is now seeking to burden local election administrators in a way that will impede them in their efforts to safeguard against that same interference in the upcoming election.”

GRAHAM, N.C. – Five voters represented by the Southern Coalition for Social Justice (SCSJ) charged with voting while ineligible accepted plea deals to lesser charges in Alamance County Superior Court today. As part of the deal, prosecutors dropped all felony voting-related charges.

SCSJ clients Anthony Haith, Neko Rogers, Whitney Brown, Keith Sellars and Willie Vinson, Jr. pled to a lesser charge – misdemeanor obstruction of justice. As part of the plea, the five individuals will each complete 24 hours of community service, be placed on unsupervised probation for 12 months, and offer no admission of guilt to any voting-related charges.

The Southern Coalition for Social Justice issued the following statement after the pleas deals were accepted by the court:

“Our clients had to make a hard decision. They believe that the law they were initially charged under was enacted in 1901 with an intent to discriminate against people of color and intimidate communities from voting. Such a law is unconstitutional.

“What happened in the courtroom today is nothing new, though. Far too often, people plead to lesser charges, even when justice is on their side, in order to avoid the possibility of facing time in prison, being separated from their families, losing their jobs, and disrupting their lives and the lives of those around them. Similar events happen every day in courtrooms across the country.

“Our communities deserve better. No one should have to face the possibility of prison time for the act of casting a vote that they believed they were eligible to cast. These charges sought to punish people whose only intent was to participate in our democracy. All of the charges should have been dismissed and the law that led to these prosecutions should be deemed unconstitutional.”

RALEIGH, N.C. – North Carolina’s practice of charging criminal defendants with an array of court fines and fees unjustly burdens low-income people and violates the state constitution, according to a motion filed today in Wake County Superior Court. The motion challenging the constitutionality of court costs is the product of a working collaboration between several nonprofit organizations including the ACLU of North Carolina and the Southern Coalition for Social Justice.

The state’s criminal justice system charges defendants with mandatory fines and fees for costs related to court, jail, community service, and more. These fees start at $180 but can reach into the tens of thousands and are used to fund various state agencies, even though the state constitution requires that most should fund the public school system.

Attorney Scott Holmes filed the motion in the case of Carol Anderson and Dale Herman, demonstrators arrested at the N.C. Legislative Building protesting House Bill 2. The motion challenges the constitutionality of court costs on the grounds that some are being used to fund the court system, not the local school system as required by the constitution. Article IX, Section 7 of the state constitution states:

“…all penalties and forfeitures and of all fines collected in the several counties for any breach of the penal laws of the State, shall belong to and remain in the several counties, and shall be faithfully appropriated and used exclusively for maintaining free public schools.”

The coalition has made the motion available as a template for other attorneys to use to challenge the constitutionality of court costs throughout the state.

After the motion was filed in Wake County Superior Court, statements were issued by the following coalition partners:

Cristina Becker, Criminal Justice Debt Fellow at the ACLU of North Carolina:

“For far too long the legislature has gotten away with circumventing the state constitution to fund an array of state agencies on the backs of the poor. North Carolina’s excessive court costs have created modern-day debtors’ prisons that keep people in jail simply for being poor and have a devastating impact on communities across the state. We are offering this motion as a template for other attorneys throughout the state and encourage them to use it to challenge the unconstitutionality of court fines and fees in every jurisdiction.”

David Hall, criminal justice attorney at the Southern Coalition for Social Justice:

“We must do everything we can to end the unconstitutional practice of funding our court system on the backs of the poor and indigent people of the state. The burdens of court fines and fees disproportionately affect people of color, and it’s time to end this practice.”

Scott Holmes, attorney for Anderson and Herman:

“This is an important step in reversing the flow of resources in the school to prison pipeline. Our Constitution requires that the fees collected in criminal cases shall fund the education of our children in public schools, not fund our courts.”

The Southern Coalition for Social Justice has signed onto a resolution drafted by the North Carolina Commission on Racial and Ethnic Disparities in the Criminal Justice System that calls for the immediate removal of all Confederate monuments, memorials, flags, and other symbols and markers of racism and white supremacy, from all public spaces inside or outside of courthouses in the state.

The resolution recognizes that “visible and systemic markers of racism and white supremacy, including those commemorating the Confederacy, were erected outside courthouses and centers of government power specifically to reclaim those public spaces for the unjust causes the markers and symbols represent.”

While there is currently a state law prohibiting the removal of divisive symbols of racism and injustice, the resolution calls upon the North Carolina General Assembly to repeal the 2015 statute.

The Southern Coalition for Social Justice has filed a Brief of Amici Curiae on behalf of the NAACP and Policy Council on Law Enforcement and the Mentally Ill (PCLEMI) in County of Los Angeles v. Mendez, currently before the U.S. Supreme Court. Scheduled to be argued in March, the case involves important questions about the facts and circumstances courts should consider when evaluating the reasonableness of a police officer’s use of deadly force. The brief can be read at southerncoalition.org/mendez.

Angel Mendez and his wife Jennifer were laying on a futon in their home in June 2010 when two LA County Sheriff’s Deputies, searching for another person who had earlier been sighted nearby, made an unannounced, warrantless entry through the front door. The deputies’ sudden entry prompted Angel Mendez to sit up. Mendez’s movement caused a broken BB gun to shift and inadvertently face the front door, causing the deputies to perceive a threat and open fire. The deputies fired 15 shots at Angel and Jennifer, who was 7 months pregnant. The couple suffered severe, permanent injuries, and Angel’s leg had to be amputated. By the deputies’ own admission, the Mendezes committed no wrongdoing. There was nothing they could have done to avoid being shot, and they had no connection to the individual the deputies had been searching for.

The Mendezes filed suit and secured a judgment that held the deputies liable for excessive force both under a theory of officer provocation and traditional tort law principles. The defendants and various law enforcement and municipal organizations have now asked the U.S. Supreme Court to overturn that judgment, arguing that that the presence of the BB gun made it reasonable for the deputies to perceive a threat warranting the use of deadly force. They have asked the Court to hold that the deputies’ unlawful entry into the home is irrelevant for purposes of evaluating the reasonableness, and thus lawfulness, of their actions. The United States has also filed a brief urging the Court to reverse the lower court decision.

SCSJ’s brief with the NAACP and PCLEMI urges the Court to do just the opposite and emphasizes the important role civil liability plays in deterring police misconduct. The brief argues that when officers cause people to be subjected to deadly force in circumstances that are objectively unreasonable and of the officers’ own making, the Fourth Amendment holds them accountable. This is particularly true in cases involving unannounced, warrantless entries into the home, which create a foreseeable danger of confrontation with a startled homeowner. Courts rarely award anything more than nominal damages for an unlawful search. The brief argues that if officers know they will not be held liable for the foreseeable consequences of unlawful searches, they are more likely to occur.

The brief also argues that the approach proposed by law enforcement organizations poses unique dangers to people of color, who have historically been subjected to disproportionate use of deadly force. The brief highlights social science research about the danger of implicit bias, which poses its greatest threat when officers are faced with making split-second judgments about the use of deadly force in circumstances that are tense, uncertain, and rapidly evolving. A variety of studies are cited indicating that people of color are more likely to be perceived as deadly threats in such situations. SCSJ and its partners argue the Court should account for the emerging literature on implicit bias when crafting rules affecting the lawful use of force.

The brief also argues that people suffering from mental illness will be acutely vulnerable to the impact of any decision that extends the principle of immunity for the proximate consequences of unannounced, forcible entries into a home. People with mental illness are more likely to have difficulty comprehending an unannounced entry, and many are likely to react in ways that will prompt officers to feel the need to employ deadly force. The brief argues that it is important to the safety of people with mental illness that the constitutional framework for excessive force claims not retreat from a totality of the circumstances approach. If a court is focused solely on the moment force is used, with no regard for the preceding circumstances, then force used against such individuals will almost never be deemed unreasonable.

Statement from the Southern Coalition for Social Justice on Police Violence

The Southern Coalition for Social Justice is appalled and outraged by the killing of Keith Lamont Scott by a Charlotte-Mecklenburg police officer. Unfortunately, the killing of Mr. Scott is not an isolated incident. The killing of African-Americans by police has been, and continues to be, all too common. Such killings continuously demonstrate that racism and systemic inequity are deeply rooted in our society. So far in 2016, there have been 217 documented killings of African-Americans by police officers in the United States[1], which is grossly disproportionate to police killings of any other race[2].

The Fourteenth Amendment of the U.S. Constitution guarantees everyone equal protection under the law. It is not a suggestion. It is a right – one that is currently denied to many individuals and communities of color. When black and brown people are killed by police in circumstances where white people are not, it clearly demonstrates discrimination. We must do better. We must find ways to better achieve justice, fairness, and equality. We must hold police officers and departments accountable for acts of violence and discrimination.

We want justice and a society that gives people of color justice. SCSJ continues to stand in solidarity with all communities affected by such killings and remains dedicated to confronting and addressing injustice, inequality, and oppression. We recognize that lasting solutions will come from affected communities themselves, who live with the problems on a daily basis and have the most informed understanding of what works and what does not work.

We pledge to continue gathering and analyzing data that identifies discriminatory police practices and advocating for legal doctrines that protect the rights of people who have been the subject of such practices. We will continue providing legal services to communities that disproportionately encounter and interact with law enforcement. We will continue to support community leaders who strive to confront the systemic problems that have allowed these tragedies to persist. We will continue to demand justice.

Durham, N.C. A jury today found Carlos Riley, Jr. not guilty of assault on a law enforcement officer with a deadly weapon, two counts of assault with a firearm on a law enforcement officer, assault on a law enforcement officer inflicting serious injury, and robbery with a dangerous weapon. He was found guilty of common law robbery for taking the officer’s handgun from the scene. SCSJ’s Ian Mance analyzed the officer’s stop and search history, which demonstrated that the officer had a highly-racialized enforcement history and regularly conducted off-the-books traffic stops. That information was used during Alex Charns’ cross-examination to attack the officer’s credibility.

Umar Muhammad, SCSJ’s Community Organizer, attended court in support of the family and community members as often as possible. SCSJ’s David Hall made an appearance in the Carlos Riley case to make a motion to have Mr. Riley’s car returned.

Shortly before the verdict was read, the judge allowed Carlos’ younger sister Destini to screen her 15 minute documentary film, “I, Destini” in the courtroom for her brother. The film premiered at Hayti Heritage Center last week and is about the impact of Carlos’ incarceration on her family. Here is her September 2013 statement to the Durham City Council about the case:

This story was written by Tammy Grubb and was first published in The News & Observer on May 26, 2015.

CHAPEL HILL – A coalition of attorneys, citizens and community advocates is asking Orange County law enforcement to weed out any racial bias in their departments.

The Orange County Bias-Free Policing Coalition recommended 11 steps, including periodic review of stop, search and arrest data; dashboard and body cameras for officers; mandatory use of written consent-to-search forms; and the treatment of marijuana possession as a low-priority crime.

The coalition has given Carrboro, Chapel Hill and Hillsborough police, along with the Orange County Sheriff’s Office, until July 3 to respond.

While bias may start with the officer on the street, it’s important to understand that it’s not just a policing issue, said Orange County public defender James Williams Jr., a member of the coalition.

“The whole system needs to be involved in efforts to address (bias),” he said. “If we only look at the police, then I think we will never get this right.”

The coalition’s report noted key findings of a statewide police bias study released in December. The study found the Chapel Hill Police Department made 65,460 stops and 2,427 searches between 2002 and 2013. The Carrboro Police Department made 30,528 stops and 2,010 searches in that time.

Black drivers accounted for 24 percent of Chapel Hill stops and 22 percent of Carrboro stops, the study found, while the black population in each town was roughly 10 percent. Rural Orange County stops involved black drivers 26 percent of the time, it found, while the black population was 12 percent.

Roughly 12 percent of black drivers who were stopped in Carrboro had their cars searched, compared to 5 percent of white drivers, the data show. In Chapel Hill, 6 percent of black drivers stopped had their cars searched, compared to 3 percent of white drivers.

The race-based differences in motorist treatment are not unique to Orange County, coalition members said, pointing to Ferguson, Mo., Baltimore and other places having a similar discussion.

“Justice must start at home,” said Frank Baumgartner, a UNC political science professor involved in the study. “We are calling on our local community leaders to show leadership by looking seriously into these issues and working with community groups to enact meaningful reforms.”

Spotlight on Durham

The city of Durham considered the UNC findings in depth earlier this year as it reflected on bias in the Durham Police Department. The city had sought reviews before by local boards and the U.S. Justice Department’s Diagnostic Center.

Durham now has more than three dozen changes in place or being considered, such as requiring officers to get written permission before searching a car during a traffic stop. The policy doesn’t affect searches carried out with a warrant or when an officer has probable cause to search.

The department also hired a public affairs manager to reach out to the community and completes periodic reviews of police stop, search and arrest data. Police officials have been holding public forums more recently to talk about plans for equipping officers with body cameras.

More to the story

Carrboro hasn’t had a racial bias or profiling problem, Horton said. If a complaint were filed, the officer accused of violating department policies would be investigated right away, he said, and, if found responsible, be reprimanded or retrained.

“We’re such a small department that if we had an issue, the supervisor would pick up on it pretty quickly,” he said.

Horton also took issue with using population data to compare stops and searches by race. Local residents are very transient, he said, and a majority of Carrboro stops and searches involve drivers from other counties.

The department is trying to compare the study data to its own records, he said, but lacks the staff and skills to do much of what’s requested. Southern Coalition for Social Justice data experts recently showed Carrboro police staff how to access and analyze traffic stop data, the coalition reported.

Chapel Hill started quarterly reviews of each officer’s traffic stops in 2012 as a way to identify any irregularities or patterns. The information collected is compared to local data about race and other demographics, Chief Chris Blue has said, and sometimes to other officers’ reports.

“Personally, I think it is healthy for organizations to build systems that require periodic reviews of all processes, particularly those involving the potential for bias, whether intentional or not,” Blue is quoted as saying in the UNC School of Government’s Indigent Defense Manual Series.

Blue declined to address the coalition’s requests at this time but has said before he understands the community’s frustration. He also agreed previously that the numbers don’t tell the whole story, noting that police sometimes target an area in response to citizen requests.

“Just saying (bias) doesn’t exist doesn’t make it disappear,” Mayor Mark Kleinschdmit said. Chapel Hill police are open to talking about issues and solutions, he said, because the changes underway and being considered will require the community’s support to be successful.

Blackwood said he would respond to the coalition’s requests by the July deadline. The group is free to make his response public at that time, he said, declining to comment further.

Deputies searched the cars of 23 black drivers and 20 white drivers last year, Blackwood said at the January event. It’s common to stop a driver, regardless of race, because they or their cars haven’t been seen in the area before, he said, but deputies do not profile drivers by race.

“We have black officers who are stopping black drivers, and if you asked them (why) it’s because they had a (motor-vehicle violation),” Blackwood said then. “The implication is that we’re stopping black drivers (deliberately), and I just disagree with that.”

While the number of searches may be low, the coalition said, the number appears different when you consider the county’s racial makeup. It’s not the number of traffic stops, Williams said, but what law enforcement is doing in an effort to find contraband.

“Instead of race being used as a descriptor, it’s being used as a predictor” of criminal activity, he said.

Training, changes happening

All local agencies require officers to receive annual diversity and other training. Some officers also attended a recent regional workshop with Lorie Fridell, of the Fair and Impartial Policing group. The “train the trainer” event taught them how to teach bias-free policing techniques to their peers.

Blackwood has emphasized training and resolving bias concerns since being elected last year, Orange County Commissioners Chairman Earl McKee said. The commissioners work closely with the sheriff but do not have a supervisory role, he said.

“The board is concerned that every person in Orange County … receives fair, responsive and responsible treatment when dealing with law enforcement,” McKee said. “I think we’re striving to get better.”

The sheriff’s office already requires deputies to get written consent for searches when there’s no evidence of a crime, Blackwood said at the forum. Chapel Hill and Carrboro are considering the possibility.

Written consent is a good idea, said Kleinschmidt, who is also an attorney. He noted concern about and changes this year in the federal civil forfeiture program, which let officers seize cash and property from individuals without proving a crime has occurred.

Another growing trend is outfitting officers with cameras.

Most Orange County police and sheriff’s vehicles are equipped with cameras. Hillsborough bought body cameras last year for some of its officers, and Chapel Hill is considering the possibility now.

Carrboro’s latest capital projects budget includes $91,000 to buy 42 cameras, enough for each officer and a few replacements. At least 14 cameras will be purchased during the first round, Horton said, expanding eventually to about 35 patrol cars. He has been meeting with Alderman Damon Seils and the ACLU to work out the details, he said.

Marijuana crimes

The coalition also asked local law enforcement to reduce the emphasis on marijuana crimes.

Roughly 47 percent of those arrested for marijuana possession in Chapel Hill are black, the coalition reports, and about 44 percent in Carrboro. The number of black people arrested for marijuana possession in rural Orange County was 27 percent.

That’s a concern, coalition members said, because many involve young people, and in North Carolina, 16- and 17-year-olds are prosecuted as adults. A low-level marijuana arrest can become part of a young person’s permanent record, affecting their ability to attend college or get a job.

Carrboro officers can use discretion when they find a small amount of marijuana, Horton, said, but someone with the drug bagged for sale would be arrested. He suggested groups opposed to marijuana laws contact legislators.

Ray Gronberg e-mailed me last week asking me to respond to new language in the city’s anti-poverty initiative calling for a “zero tolerance” crackdown on drug activity in Northeast Central Durham. I gave him my honest reaction, which was that such a policy seemed counterproductive if the intent was to help lift people out of poverty. I had no idea that the short paragraph I sent him in reply would be framed as a story in and of itself.

As you know, it is an empirical fact that a person saddled with a criminal record for a low-level drug offense will have more difficulty finding employment and is thus more likely to remain in poverty. (In the last year, my office has assisted hundreds of people in Durham in seeking expungement of their criminal records in order to improve their employment prospects. A large percentage of those individuals were convicted of nothing more than minor non-violent drug offenses.) When the city says it intends to take even more of a “zero tolerance” approach to drugs in NEC Durham, I take that to mean even more aggressive efforts by the police to arrest anyone suspected of drug involvement and aggressive efforts from the District Attorney to prosecute. I think this is a mistake, as it will only expand the pool of people who are currently experiencing difficulty finding legitimate work opportunities.

In your column in the Herald-Sun this morning, you repeatedly questioned where I live and whether I am in a position to speak to these issues. For most of the past 5 years, I lived in Northeast Central Durham, within sight of the corner of Alston and Main, the intersection that Durham PD has labeled the “Bull’s Eye” of its aggressive drug enforcement efforts since 2007. Rarely a week went by that I did not see police officers pulling young black men out of their cars or placing them against walls, often quite forcefully, and patting them down for drugs.

This experience, in part, informed my decision to join the FADE coalition and support their organizing efforts against racial profiling and police misconduct in the community. The FADE coalition’s approach involved holding community meetings and listening sessions and taking its lead from the people living in those neighborhoods most saturated with police activity. These meetings began happening well before the anti-poverty initiative was ever announced. They informed the policy proposals, including written consent, that we brought to the City in October 2013.

I know from the hundreds of people I have met with over the last year and a half that to be young, male, and black in East Durham is to live in a state of regular surveillance and under the abiding suspicion of law enforcement. Though most focused on that demographic, this state of suspicion extends to others as well. I recently assisted a 50-year old black woman who was pulled out of her car on Alston Avenue, illegally searched, and accused of being a drug dealer all because officers saw her handing a plate of BBQ to a friend. This sort of thing does not happen on Ninth Street. In East Durham, however, it is a regular consequence of our “zero tolerance” approach.

Self-report drug use studies indicate that whites are using illegal drugs in this city at numbers equal to or greater than blacks. Yet there is no “zero tolerance” policy for Durham’s white neighborhoods. Police rarely kick in doors or drag people out of their cars in the areas surrounding Duke University. The same article that quoted my remarks also quoted the Duke dean of students saying that the university’s approach to drug offenses is “much more therapeutic than it [is] punitive.”

On this point, I believe Duke has it right. Rather than treating people involved in drug activity as our enemies, I believe we should hold them accountable for the harm they cause in their neighborhoods while also supporting them and trying to help them redirect their energy in a more positive direction. There are already multiple efforts ongoing in the City of Durham right now to do just that, including SpiritHouse’s Harm Free Zone initiative and Scott Holmes’ Restorative Justice Circles of Support program.

While recognizing that many people have different opinions on this issue, I believe the city would be better off supporting those efforts rather than doubling down on policies that are proven failures. We cannot arrest our way out of this problem. We have had forty years of zero tolerance and of letting police take the lead. Drugs are as available in our communities as they’ve ever been and our struggles with poverty are more intractable than ever. I believe it is time for a new approach, and that is why I responded to Ray’s questions in the way I did.